Aggravated Felony (AF)
Try to get 364 or less, but even with a year it should not be held an AF as COV. Plead to harassing rather than following. See Advice
Crime Involving Moral Turpitude (CIMT)
The Ninth Circuit held it is a CIMT.1Orellana v. Barr, 967 F.3d 927 (9th Cir. 2020)
Other Removal Grounds
BIA reversed itself to hold that 646.9 is not a deportable “stalking” offense under the DV ground but see Advice.
If this were held a COV, and D and V shared a protected relationship, it could be a crime of DV. But it should not be held a COV.
Advice and Comments
See endnote for citations and further discussion of COV and stalking deportability ground.2For further discussion of immigration consequences of Pen C § 646.9 and the “stalking” basis for deportability, see ILRC, Case Update: Domestic Violence Ground of Deportation (June 2018) at www.ilrc.org/crimes. In sum:
Deportable stalking offense. A conviction of “stalking” causes deportability under the domestic violence ground, 8 USC 1227(a)(2)(E). The stalking can be against anyone; it is not limited to domestic relationships. Reversing its own prior precedent, the BIA held that Pen C § 646.9 is not a deportable crime of stalking. It held that § 646.9 is overbroad and indivisible because it prohibits intent to cause fear for one’s “safety,” while the generic definition of stalking requires intent to cause fear of “death or bodily injury.” Therefore, no conviction of § 646.9 is a deportable crime of stalking for any immigration purpose. Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 72 (BIA 2012).
Crime of violence. The Ninth Circuit held that at least § 646.9 harassing is not a COV under 18 USC § 16(a) or § 16(b). Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007). Furthermore, § 646.9 should not be held divisible between following and harassing, because a jury is not required to unanimously decide between them. See CALCRIM 1301. The BIA declined to apply the Ninth Circuit’s decision in Malta-Espinoza outside the Ninth Circuit, and found that every § 646.9 conviction is a COV. Matter of U. Singh, 25 I&N Dec. 670, 676-677 (BIA 2012). However, this finding was based on the definition of COV at 18 USC § 16(b), which the Supreme Court has since struck down. See discussion of Sessions v Dimaya, 138 S Ct 1204 (2018) at Pen C § 207, endnote. Under the remaining definition, 18 USC § 16(a), no conviction of § 646.9 should be held a COV for any purpose nationally, regardless of information in the ROC. Still, to provide extra protection defenders should try to plead harassing rather than following.
Conviction of “stalking,” whether or not a domestic relationship is involved, is a deportable offense. The BIA held that 646.9 is not “stalking.” See endnote. But because the law might be volatile, defenders may wish to make another plea, e.g., PC 241.
CIMT: To avoid a CIMT, look to, e.g., 136.1(b)(1), 236, 243(a), (e), 459, 591, 594, etc. for alternatives.
DACA: If DV-type victim, a misd is “significant misdemeanor” for DACA. See PC 25400.